Justice 2 Committee, 02 Mar 2004

Meeting date: Tuesday, March 2, 2004

Official Report 191KB pdf

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Constitutional Reform Bill (UK Legislation)

Agenda item 4 is the Constitutional Reform Bill, on which members have received background papers. As members know, the bill will be the subject of a Sewel motion, whose timetabling is outwith our control and is determined by proceedings at Westminster.

I talked to Pauline McNeill, who is the Justice 1 Committee's convener, about one justice committee considering the bill before the Parliament has to consider the Sewel motion, which seemed desirable. One aspect of the bill that is a little unusual is the fact that part of it will impact exclusively on Scotland and is not just a United Kingdom measure that will affect Scotland along with other parts of the UK. For that reason, Pauline McNeill and I thought it appropriate that one of our committees should consider the bill in a little more detail.

It was easier to timetable consideration of the bill for this committee rather than the Justice 1 Committee, which has a busy timetable for the forthcoming month. The Parliament might deal with the Sewel motion on 24 or 25 March or possibly 31 March or 1 April. That is why the bill is on the agenda and why members have been deluged with voluminous documentation, whose purpose is to let committee members consider how the committee should approach the bill. If the committee wants to deal with the bill, it should do so with a view to taking evidence.

I am a wee bit worried about the timescale. I accept that the bill is to be dealt with by Sewel motion, although I do not agree with that, but it remains important to have adequate time to deal with the bill, which has great implications for Scots law. I worry that if we took evidence next week and the week following that and the Sewel motion was dealt with on 24 or 25 March, we would not have time to consider properly our conclusions and publish a report. It is important to publish a report at the end of our deliberations. I know that the motion's timetabling is outwith our control, but could we make representations to the Executive to ask for the Sewel motion to be dealt with on 31 March or 1 April, rather than the previous week? I presume that that would allow us to conclude our report on 23 March and have it published before the Sewel motion was dealt with in the following week.

I thank Nicola Sturgeon for her suggestion. I am perfectly happy to write to the Executive with that request. I do not know the extent to which the Executive has room for manoeuvre, but the point is well made. I am conscious that our youth justice seminar takes place towards the end of the period that we are discussing. Nicola Sturgeon is correct that the time constraints are considerable. All that the committee is trying to do is to work within them. If members agree, I am happy to write to find out from the Executive whether the timetabling has any latitude.

If sufficient latitude is not available and the Executive cannot push back consideration of the motion by a week, we could meet at lunch time on a Thursday. Last week, two committees met at Thursday lunch time. We want to work on the bill, so most of us would probably be willing to give up a Thursday lunch time to accommodate it.

I agree.

I have no objection. If members can accommodate such a meeting, I will be happy with it. I thank Karen Whitefield for her suggestion.

Within those parameters, we must consider what we want to do and decide from whom we would like to take evidence. Given the tight timescale, I asked the clerks to approach informally some of the more obvious individuals from whom I thought that the committee would want to hear. Committee members will have views about whom we should ask for oral evidence. Other people who have relevant comments to make might not need to do that orally and might be able to make written submissions. I am open to suggestions from the committee.

The suggestions in the clerks' paper are helpful. We should ask both Lord Cullen and Lord Hope to give oral evidence but, if they preferred to give written evidence, that would be equally helpful. It is also important to hear from the Law Society of Scotland and the Faculty of Advocates. I am less bothered about whether academics make written or oral submissions, because we can take their written submissions on board rather than hear from them orally. In addition to the suggested witnesses, we might want to consider asking the Lord Advocate to give oral evidence. It is important to hear from him on the bill.

Does everyone agree to that?

Members indicated agreement.

The other person whom it would be competent to ask is Lord Falconer, although he might not be able to come. What does the committee think?

The Lord Advocate and Lord Falconer will argue from the same perspective. Do we want both or would one suffice?

Lord Falconer is the legislative lead.

He is the minister who is responsible for the bill.

If we have a choice between the Lord Advocate and Lord Falconer, I say with the greatest respect to the Lord Advocate that I would go for Lord Falconer, simply because we know the Lord Advocate's view. As Annabel Goldie said, the Lord Advocate is not the decision maker. He will feed in the Executive's point of view, but on some details, such as the number of Scottish judges and the supreme court's operating conventions, Charlie Falconer could give us answers. The Lord Advocate can say only what he would like Lord Falconer to do.

Otherwise, I agree with Karen Whitefield. I do not know what legal academics the Scottish Parliament information centre has identified, but I throw into the ring Hector MacQueen from the University of Edinburgh, who is an expert on the subject.

If we are pushed for time, we might ask academics to make written submissions. In principle, we will ask the Lord Advocate and Lord Falconer to give evidence.

The time constraints are the problem.

We will ask for what we can obtain and structure the meetings accordingly.

I am not trying to be mischievous, but I suspect that if we ask for the Lord Advocate and Lord Falconer, we will be offered the Lord Advocate, because his appearing is more practical. If we want to hear from Lord Falconer rather than the Lord Advocate, we will have to make that quite clear.

I appreciate Nicola Sturgeon's point, but the two dates are pretty imminent and Lord Falconer might not be able to attend. If he cannot, should we not hear from the Lord Advocate? I am concerned that we might end up hearing from neither Charlie Falconer nor the Lord Advocate, who will certainly be putting forward the Executive's view. We need to invite them both.

My point is that rather than just invite both and see whom we get, we should express a clear preference. However, I take Karen Whitefield's point.

Is that agreeable to the committee?

Members indicated agreement.

Is it the committee's preference to hear from Lord Falconer?

Members indicated agreement.

Do members have any other suggestions about witnesses, or have we covered all the potential sources?

The paper suggests that we have some dialogue with the Constitutional Affairs Committee. Does that committee have any further locus in the consideration of the bill? I am conscious that it produced a report two or three weeks ago and I am curious as to whether it has any further role in scrutinising the bill and whether there would be any point in our speaking to its members.

The Constitutional Affairs Committee's role is complete unless it chooses to continue its inquiry work, because the scrutiny will be done by a separate committee—although the memberships of those committees might overlap. The Constitutional Affairs Committee would have a further role only if the committee that was scrutinising the bill required or felt that it would be helpful to get illumination from it about the issues.

I suggest that we just avail ourselves of the Constitutional Affairs Committee's report. We should certainly also send the report of our deliberations to whichever committee will be considering the matter.

That seems perfectly fair. Members' comments have been helpful and I propose to ask the clerks to compile formal invitations and establish a structure for our next two meetings as a matter of urgency, taking on board the suggestion that we might have to try to fit in an additional meeting—or meetings. I ask the clerks to report back soon with a provisional timetable, which would be helpful to members, who—I guess—are concerned about the timings. We will take the matter further at our next meeting.